Payton's Adm'R v. Childers' Elec. Co.

• Decision Date: 15 February 1929
• Citation: 228 Ky. 44
• Parties: Payton's Administrator v. Childers' Electric Company et al.
• Court: United States State Supreme Court — District of Kentucky

228 Ky. 44

Payton's Administrator v. Childers' Electric Company et al.

Court of Appeals of Kentucky. Common Pleas Branch, Second Division.

Decided February 15, 1929.

1. Negligence. — The general rule is that contractor, manufacturer, or furnisher of an article not imminently dangerous to life or health is not liable to third parties having no contractual relation with him for negligence in construction, manufacture, or sale thereof.

2. Negligence. — Manufacturer or installer of article which is not inherently dangerous, but is manifestly dangerous by reason of negligent construction, when put to use for which intended, is liable to any person suffering injury therefrom which might have been reasonably anticipated.

3. Electricity. — Electric manufacturing company, constructing or installing electric crane or hoist in ice company's plant, was charged with knowledge that it was to be operated by employees of latter company and was imminently dangerous to them, if negligently constructed or installed.

4. Electricity. — Considerations of public policy demand that utmost care and caution be exacted from manufacturer and installer of electrical machinery, and operator thereof has right to rely on implied representation that it is properly installed and free from defects.

5. Negligence. — Manufacturer of article which is not inherently dangerous, but may become so when put to intended use, owes public the duty of employing skill, care, and diligence in its manufacture, and using reasonable diligence to see that it is reasonably fit for intended use.

6. Electricity. — In action against electric manufacturing company for death of ice company's employee by contact with electrically charged wire while operating electric hoist, installed in such company's plant by defendant, general allegation of negligence in constructing and repairing hoist and appliance was sufficient.

Appeal from Jefferson Circuit Court

MORTON K. YONTS for appellant.

FURLONG & WOODBURY for appellees.

OPINION OF THE COURT BY JUDGE REES.

Affirming in part and reversing in part.

Charles S. Payton, an employee of the Duffy Ice Company of Louisville, was killed at the plant of that company on July 2, 1926, by coming in contact with an electrically charged wire. William A. Rosenfield qualified as administrator of Payton's estate and brought an action for damages for his intestate's death against the Childers Electric Company and the Louisville Electric Manufacturing Company.

The decedent was employed in the tankroom of the ice company, and it was his duty to operate an electric crane by means of which blocks of ice were transferred from the tanks to a storage room. The crane traveled on an overhead wire, or I beam which was attached to the wall at each end of the room. The petition first charged that it was the duty of the decedent to operate the electric crane, and then charged the two defendants with the operation of the crane, electric wires, and appliances, and averred that Payton's death was caused by the gross negligence and carelessness of the defendants in the operation of the crane.

The Louisville Electric Manufacturing Company filed a demurrer to the petition, and Childers Electric Company filed a motion to require the plaintiff to make his petition more definite and certain and to state whether the defendants were jointly or severally guilty of the negligence alleged, and whether, at the time of Payton's death he or the defendants were operating the crane. The demurrer and motion were sustained, and an amended petition was filed, in which it was averred that:

"The defendant, Louisville Electric Manufacturing Company, its agents and servants, by and through their gross negligence made certain constructions, reconstructions and repairs upon said electric crane and the appliances thereunto and upon certain electric wires and appliances thereunto connected with said electric crane in a grossly negligent, careless, unskillful and unworkmanlike manner and because and by reason of said gross negligence on the part of said defendant, its agents and servants as aforesaid, the said Charles S. Payton while acting for and on behalf of the Duffy Ice Company as its agent and servant and within the scope and course of his employment as such, and while operating said electric crane, was struck by certain wires and appliances and constructions which were a part of said electric crane and which, by reason of the said grossly negligent, defective and dangerous construction thereof had fallen from its accustomed place and had come in contact with the body of said Charles S. Payton and by reason thereof the electric currents which were carried in the said electric crane and its wires and appliances came in contact with the plaintiff's intestate and thereby caused a dangerous and deadly current of electricity to flow through the body of plaintiff's intestate and as a result thereof, plaintiff's intestate lost his life."

The Childers Electric Company filed a demurrer to the petition as amended, and the Louisville Electric Manufacturing Company filed a motion to make it more specific, which was sustained, and second and third amended petitions were filed, to which like motions were sustained. The Childers Electric Company was not referred to in any of these amendments, and, after the third amendment had been filed, the court properly sustained a motion to dismiss the petition as to it. A fourth amended petition was filed, in which it was averred that:

"A hoisting device was fastened to the wall and the said device was also improperly, imperfectly and unsuitably fastened to and against said wall, and the entire electric hoist and all the appliances thereunto were so improperly and unsuitably constructed, reconstructed, and repaired by said defendant company that the said hoists and all the appliances thereunto were in an imminently and inherently dangerous condition, and the said defendant company, its agents and servants, knew that said electric hoist and its appliances were to be operated by means of electricity, and that a deadly and dangerous current of electricity would pass to the said hoist and certain appliances thereunto for the purpose of operating the said hoist and the men employed by the Duffy Ice Company would be required to operate the said electric hoist, and said defendant company, its agents and servants aforesaid had knowledge or means of knowledge of the imminently and inherently dangerous condition of the said hoist and said appliances thereunto as aforesaid, and the plaintiff's intestate did not know of said dangerous and defective condition of said hoist and all the appliances thereunto and did not know that...